A Jurisprudential Analysis On The System Of Privilege Of Relatives To Testify

The criminal procedure law stipulates that all those who know the situation of a case have the obligation to testify,and those who refuses to testify without proper reasons should bear the adverse consequences.However,in reality,some witnesses are not willing to testify or even hinder the testify after compare the value of maintaining a relationship with the cost of breaking the law.Once the law is formulated,it is justifiable to curb human feelings in order to realize its values such as fairness and justice.But generally speaking,respecting individual choice,protecting individual rights and maintaining community relations are the basic requirements of the law.Any legal system should be established on the basis of solid legal principles and realize the complementation of national law,natural principles,human feelings and other moral concepts.From the perspective of comparative study,most countries in the world have built the system of relatives’ privilege to testify out of the respect for human nature and attention to family ethics.This is a right that runs through all stages of criminal procedure,and it is up to the relative witness to decide whether to testify or not without being forced.In 2008,the Supreme People’s Court of China pointed out in the pilot work of the Provisions on unified evidence of the people’s Court(draft of suggestions on judicial interpretation),"(the right of husband wife,parents and children to be exempted from testifying)witnesses have the right to be exempted from testifying on matters that may cause their spouse,parents or children to be prosecuted or convicted." However,the criminal procedure law has been amended,but there is no sign of privilege of relatives witness.Article 193 of the current law only provides that relatives have the obligation to testify in court.The mode of testifying but not being forced to appear in court only avoids the tit for tat of relatives in court,and relatives’ witnesses still need to to perform the obligation of testifying in other stages of pre-trial proceedings.This is a unique legislation in our country,whose fundamental purpose is to ensure the realization of the primary goal of punishing crimes,but it will damage the defendant’s right to cross examination,and also can not achieve the legislative spirit of good ethics and caring for family.Therefore,this is not the real sense of relatives’ privilege to testify.From the perspective of jurisprudence,this paper discusses the theoretical support of the privilege.The first part expounds the basic concept of the privilege of relatives to define the object of discussion.Then,it analyzes the legal basis and value pursuit of the system.The third part,following the path of legal inheritance and legal transplantation,this paper analyzes the hidden factors of relatives in the long history of China and the west,and analyzes the evolution process so as to provide useful reference for the reconstruction of this system in contemporary China.The fourth part,through a variety of legal interpretation methods,qualitative analysis of the first paragraph of Article 193 of the criminal procedure law,draws the conclusion that there is no complete immunity system of relatives to testify in China at present,and analyzes the reasons for the absence of the system and the dilemma of practice from the perspective of legal application.The last part,combined with the above analysis,reply to the related questions about the privilege system of relatives to testify,and summarize the practical feasibility of re establishing the system in China.